Tory Bowen says she knows what happened to her on the morning of Oct. 31, 2004.
But she won’t be able tell her story to jurors — at least not in a way that’s truthful to her, she says — because a judge’s order bars witnesses from using words like “rape” and “sexual assault” in the trial of Pamir Safi, who is accused of sexually assaulting Bowen.
“In my mind, what happened to me was rape,” said Bowen, 24. “I want the freedom to be able to point (to Safi) in court and say, ‘That man raped me.’”
Last month, Lancaster County District Judge Jeffre Cheuvront denied a motion by prosecutors that would have prohibited Safi’s attorneys from using words like “sex” and “intercourse” when describing the encounter between Safi and Bowen.
The Lancaster County Attorney’s Office had argued the words would imply Bowen consented to have sex.
Cheuvront also has sustained an earlier motion by defense attorneys barring the words “rape” and “sexual assault kit.”
In Bowen’s opinion, Cheuvront’s ruling means she will have to lie on the witness stand.
“The word ‘sex’ implies consent,” she said. “I never once would describe (what happened) as sex. He’s making me commit perjury.”
Clarence Mock, one of Safi’s attorneys, said Cheuvront made the rulings to keep the trial fair.
The word “rape,” is not a legal term, he said. “Sexual assault” is, but whether a defendant committed that crime is a question for a jury to answer based on evidence at trial, Mock said.
“Under the rules of evidence, witnesses can’t reach legal conclusions,” he said.
“Trials are competing narratives of what happened,” Mock continued. “They should not turn on politicized hyperbole. They should turn on the facts.
“… Using words like ‘rape’ creates unfair prejudices for defendants and invades the (duties) of the jury.”
Safi, 33, will stand trial in Cheuvront’s courtroom a second time on the charge beginning July 9. The first trial ended in a hung jury in November.
Before the first trial, Cheuvront granted a defense motion to bar prosecutors from eliciting testimony or making arguments in front of jurors using words like “rape,” “sexual assault kit,” “victim” and “assailant.”
Bowen, who testified for nearly 13 hours at the first trial, said the ban’s effect was “huge, huge.” She said she fears a repeat at the second trial.
“They’ll (jurors) think I’m choosing to use the word, ‘sex,’” she said.
“I had to pause (at the first trial) and think, re-navigate (how to say what happened). … Jurors won’t find me credible because I’m pausing to find the words.”
Safi and Bowen were strangers to each other when they met at a downtown Lincoln bar the night of Oct. 30, 2004. According to testimony from the first trial, the two had drinks and then left together after the bar closed at 1 a.m.
Bowen told an investigator the following day she could not remember most of the previous evening and that she did not willingly accompany Safi, according to a Lincoln Police report from November 2004.
She told the investigator she could only recall waking up in a strange apartment with an unknown man who was “having sexual intercourse with her.”
Prosecutors later charged Safi with first-degree sexual assault, alleging that he knew Bowen was too intoxicated to consent to sex.
The first trial began Oct. 23 and ended Nov. 6 with a deadlocked jury. Seven jurors voted to convict Safi, and five were either undecided or in favor of acquittal.
Chuck Morrison, one of the five, said he did not think the word ban was significant for the jury.
“I don’t see that as having a dramatic effect,” he said. “I knew from her testimony that, in her own mind, she thought she had been sexually assaulted.”
But Wendy Murphy, a professor of law at the New England School of Law in Boston, said the ban’s effect could have been subtle, but no less powerful.
“It’s very difficult to explain why jurors feel the way they do,” she said. “The point is, language is so passively absorbed they don’t even know it.”
Murphy has done research on the role of language in the courtroom. She said Cheuvront’s order barring the word “rape” was unprecedented, especially because it applied to witnesses.
“That is a profoundly unfair thing for a judge to do,” she said. “I have a problem with the idea that you can compel a witness to contrive their testimony.
“I have a problem (with a judge) directing a witness, not the government, to say certain words. It impugns their candor, their credibility.”
Most of all, Murphy said, Bowen won’t be able to explain to jurors why she’s using clinical words — or, worse, words that imply consent — when she describes the encounter with Safi.
“Jurors will go back to their room and say, ‘She didn’t feel it was harmful. After all, she called it sex,’” Murphy said.
“It’s like saying to a robbery victim, ‘You can’t say you were robbed, because that’s a legal judgement. You can only say you gave your stuff to the defendant,’” she said. “That’s absurd.”
Murphy proposed a remedy.
“The judge can say (to the jury) that the attorneys and witnesses will describe (the alleged crime) in a clinical way,” she said.
Bruce Lyons, a past president of the National Association of Criminal Defense Lawyers, said he could not understand the controversy over Cheuvront’s order.
Lyons, of Fort Lauderdale, Fla., said he knew of similar rulings in other jurisdictions.
He said judges have an overriding responsibility to keep trials fair. And a prosecutor, he said, should be able to elicit testimony that will tell a jury the alleged victim believes a crime occurred, even though the victim can’t use words like rape.
“A prosecutor who has the facts does not have to rely on words like ‘victim’ or ‘rape,’” he said.
“I don’t see what all the hullabaloo’s about. It seems like someone’s looking for a scapegoat.”
Mock said words like “sex” and “intercourse” are, unlike “rape,” legally neutral.
“You can have forced intercourse, or you can have legal intercourse.”
He said witnesses can testify to the “facts that comprise the elements” of the charged offense. But that’s where it ends, he said.
For example, an alleged assault victim could say, “‘I was hit by the defendant without any prior provocation,’” he said. “But to say, ‘I was assaulted’ is to make a legal conclusion.”
Lancaster County Attorney Gary Lacey, whose office is prosecuting the case, said judges often prohibit attorneys from using words like “defendant” or “victim” in the courtroom. He said he could not recall such a bar on the word “rape,” however.
“When people try to sanitize the English language, they may” change its meaning, he said.
Judges regularly give instructions that charges or allegations are not evidence, Lacey noted. The same instructions could be given for emotionally loaded words like “rape,” he suggested.
“These jurors are smart,” he said. “If they don’t get inflamed by pictures in a homicide, they aren’t going to get inflamed by the word, “rape.”
Lacey said his office would live with Cheuvront’s order.
“Judges are going to bend over backwards to make sure nothing’s prejudicial,” he said. “I don’t agree with it, but we’ll have to live with it.”
Reach Clarence Mabin at 473-7234 or firstname.lastname@example.org .